Making Freedom Free

The nation’s district attorneys have the power to end the cash bail system. Some of them have started using it.

Poor people shouldn’t be stuck here just because they can’t afford bail.

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As a defense attorney in Houston, Kim Ogg saw defendant after defendant forced to make a terrible choice. People charged with low-level crimes such as driving without a license or trespassing would often have their bail set at thousands of dollars—too high for poor defendants to afford. The accused would have to decide between pleading guilty, even if they weren’t, and spending weeks or months in jail waiting for a trial. When given those options, “it’s very hard to resist” pleading guilty, Ogg said. Some of her clients “insisted on pleading guilty at times because they wanted out. They were willing to say they were guilty and take the deal, even if they were innocent.”

It’s a common story in courts around the country: Because of sky-high bail amounts, less affluent defendants are stuck in jail for low-level crimes while wealthy ones can buy their freedom by writing a check.

This inequity has been the target of a vigorous reform movement. In legislative action and lawsuits from New Jersey to Texas to California, advocates are passing new laws or hoping to codify legal rights that establish that people charged with misdemeanors shouldn’t be kept in jail only because they can’t afford bail.

But there’s a simpler and faster way to end cash bail: Prosecutors can just stop asking for it. Bail is set by judges, but prosecutors have huge influence on the process. When defendants appear for bail hearings, prosecutors are the ones making the bail recommendations. While defense attorneys can request lower bail, the prosecutors’ word tends to hold more weight.

Some big-city district attorneys have started to take that responsibility seriously. Ogg, who was elected DA of Harris County, Texas, last year, recently directed her prosecutors to recommend defendants be released on their own recognizance as the “default” in “most misdemeanor cases.”

The new policy exempts defendants who present a clear public safety risk, Ogg says, including those charged with domestic violence and driving while intoxicated. But in most of the 65,000 misdemeanor cases her office sees each year,prosecutors are now recommending defendants be released before trial. Any requests for bail must be based on evidence in the case.

Even if a prosecutor recommends releasing someone charged with a misdemeanor on his or her own recognizance, a judge can still choose to set whatever bail he or she wants. In the first week the new policy was in place, many Harris County judges pushed back on prosecutors, Ogg says, “grilling” them about why they weren’t recommending bail and in some cases ignoring their recommendations.

But Ogg—who made bail reform a central issue in her campaign last year—hopes that as judges get used to the rare sight of prosecutors and defense attorneys agreeing on bail, they’ll adjust to a new system.

Ogg’s decision comes as the county faces a high-profile class-action lawsuit over its bail practices. The lawsuit was filed by 22-year-old Maranda Lynn O’Donnell, who was arrested in 2016 for driving with a suspended license and spent several days in a Harris County jail because she couldn’t pay her $2,500 bond. O’Donnell is arguing that it is unconstitutional for officials to jail someone for an inability to make a monetary payment.

During a hearing in the case this month, O’Donnell’s attorneys played videos of judges callously setting bond amounts without even inquiring whether defendants had the means to pay them. Some of the bonds strain credulity, like $5,000 for someone arrested for illegally sleeping under a highway overpass. Ogg filed a pointed brief supporting the plaintiffs in the lawsuit. “We do not want to administer punishment before the defendant has been adjudicated guilty,” she wrote. “It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time.” Lawyers in the case say a ruling could come down at any time.

Foxx said she hopes those defendants will be able to get treatment services instead of languishing in a jail cell. “This is a population who are disproportionately poor and also have some other underlying condition whether it’s a drug addiction or mental illness,” she told the Chicago Tribune.

In San Francisco—where another lawsuit against the bail system is working its way through the courts—District Attorney George Gascón has called bail “inherently unfair and archaic.” In a statement issued to Slate, Gascón said, “Defendants who pose little risk of re-offending, and who will appear for trial, should not remain in jail simply because they cannot afford bail.”

Gascón and judicial officials in California started a pilot program using a computer algorithm to recommend bail amounts based on factors like pending charges and criminal records. The DA’s office says the algorithm has led to twice the number of defendants being released before arraignment. But public defenders told the San Francisco Chronicle last year that some prosecutors still ask for high bail amounts even when the algorithm recommends release, and Gascón hasn’t yet set any kind of departmentwide policy like the ones in Houston and Chicago.

Bail reform isn’t just the province of big-city district attorneys. Last month, Christian Gossett, the DA in Winnebago County, Wisconsin, realized that many poor defendants who were arrested on weekends or holidays ended up sitting in jail because no prosecutors were available for a bond hearing; almost 80 percent of the arrestees were released on their own recognizance at their first hearing the next work day. In response, as Gossett explained in a letter to county judges, he waived all appearances by prosecutors for hearings on weekends and holidays, letting judges release low-level defendants right away.

The cases in question are those “in which the individual’s freedom currently hangs on their ability to post (typically) $150, $300 or $500 in cash, on a credit card or through a friend or family member,” Gossett wrote in the letter. “No other factor differentiates their ability to be released from custody than all other individuals taken into custody on similar misdemeanor offenses, hence my concern for equal protection.”

Traditionally, it’s been rare for district attorneys to publicly criticize the money bail system as unfair and unjust, says Alec Karakatsanis, the founder of the criminal justice reform advocacy group Civil Rights Corps. “It’s one thing when activists say it, it’s another thing when it’s validated by the people in charge of the justice system,” he said. “It helps change the entire narrative when the chief law enforcement officers say it isn’t fair and causes harm to our communities.”

But Karakatsanis, one of the lawyers in the Houston bail lawsuit, cautions that even progressive policies like those set by Ogg and Foxx don’t always make it to the courtroom. “It can take some time for the policies of the head DA to sift down” to the lower-level attorneys who actually try cases, he pointed out.

Meanwhile, some county sheriffs are also jumping on the reform bandwagon, in part because removing low-level pretrial offenders from their jails saves a lot of money and resources. Harris County Sheriff Ed Gonzalez and former San Francisco Sheriff Ross Mirkarimi have both openly supported lawsuits aimed at ending cash bail. Gonzalez even testified against Harris County in the lawsuit in his jurisdiction, telling the court, “when most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system.” Mirkarimi pointed out that electronic monitoring technologies, which are being used in a growing number of court systems, make it easier to guarantee defendants come to court even if they don’t have their money on the line.

The legal argument being tested in lawsuits like the one in Houston is that cash bail violates the Constitution’s Equal Protection and Due Process clauses, as it provides a different set of judicial procedures for rich and poor defendants. The Supreme Court has ruled that bail amounts should be based on the circumstances of individual defendants, although it hasn’t articulated a specific right to bail. There’s room to go further: In Indiana, for example, the state Supreme Court ruled last year that judges in almost all cases should not set any monetary bail unless defendants pose “a substantial risk of flight or danger to themselves or others.”

Broader changes could come to cash bail systems around the country if more judges make similar rulings. But Ogg and Foxx are showing that district attorneys shouldn’t wait for that to happen—prosecutors can and should prevent people accused of committing low-level crimes from being jailed due to a lack of money. “Keeping people in jail just because they’re too poor to pay bail does not make the public safer,” Ogg said. “It’s not the way our justice system was envisioned, and we can do better.”